the cases cited above are based on torts to trespassers and persons not passengers. What we think we have demonstrated is that, under the allegations of the petition, the conductor in dealing with the passenger and shooting at him was acting in the prosecution and scope of the business entrusted to him, within the meaning of the law. If he had hit the passenger, there could be no doubt that the shooting would have been within the rule. If he missed the passenger, did the shooting cease to be within the scope of his business? Shooting at another does not fall within or without the scope of the agent's employment according as his aim is good or bad. Bad markmanship does not alter the status of the agent doing the shooting. If, then, the conduct of the conductor within the car was in law the conduct of the company, why was not the result of that same conduct, taking effect outside the car, also the result of the conduct of the company? It is not easy to see. But it is contended that, although there was an unlawful or negligent act relatively to the passenger, there was no violation of duty toward a passer on the street, and therefore no liability, although she was struck. It is a mistake to say that there was no duty to passers on a public highway not to do wrongful or negligent acts which would naturally tend to injure them. In Fletcher v. Baltimore & Potomac Railroad, 168 U. S. 135, 18 Sup. Ct. 35, 42 L. Ed. 411, it was said: "A railroad company owes a duty to the general public, and to individuals who may be in the streets of a town through which its tracks are laid, to use reasonable diligence to see to it that those who are on its trains shall not be guilty of any act which might reasonably be called dangerous and liable to result in injuries to persons on the street, where such act could have been prevented by the exercise of reasonable diligence on the part of the company." In that case wood was thrown from a repair train by hands returning from work, and caused injury to one on the highway. The hands were not then engaged in the performance of their duties, but it was shown that the practice by the men of collecting refuse timber for firewood and throwing it off along the line near their homes had been going on for some time, and that the company was charged with notice of it, and acquiesced in it, or at least it was a question for the jury, and that it was also for them to say whether the company exercised due care to prohibit the custom and prevent the performance of the act. A single act of this kind by a passenger, or an employé outside the scope of his business, would not suffice to charge the company, unless it had reason to anticipate the dangerous act and failed to use proper diligence to prevent it. But where the act is done by the agent of the company in the scope of his employment, and while prosecuting it for the

company, the single act is the company's act. Again, it has been held that if in the performance of its business the company, through its agents, negligently sets in motion a force which naturally and proximately causes an injury, it is liable. In Fraser v. Charleston & Savannah R. Co., 75 Ga. 222, where wood negligently fell or was thrown from an engine and injured a person on a highway, the case was held to be one for the jury. See, also, Savannah Florida & Western Ry. Co. v. Slater, 92 Ga. 391, 17 S. E. 350. In Western & Atlantic R. Co. v. Bailey, 105 Ga. 100, 31 S. E. 547, a petition alleged that an engineer, while running a train, saw a trespasser in time to stop before striking him, but nevertheless "carelessly, negligently, recklessly, and wrongfully allowed and permitted" the train to run at a reckless and dangerous rate of speed, without any bell or whistle being sounded and without any effort to stop the train; that the engine struck the trespasser and hurled his body against an employé of the company, who was in his proper place performing his duties, and who was thus injured. It was held that a cause of action on behalf of the injured employé was set out. The ruling was put on the ground that "the negligence of the defendant put in motion the destructive agency, and the injury sustained by the plaintiff was directly attributable thereto," and did not rest on any duty arising from the relation of master and employé. Apparently the fact of employment was mentioned rather to show that the employé was rightfully at the place where he was. The principle involved in the case just cited was impliedly recognized in Georgia R. Co. v. Wood, 94 Ga. 124, 21 S. E. 288, 47 Am. St. Rep. 146. In that caso a boy who, with others, had previously been in the habit of swinging on trains, attempted to do so on the occasion in question. He desisted, however, and ran off from the train into a private yard, where he was attempting to conceal himself. The brakeman on the train threw a stone at him. The stone, by accident, having missed the boy, hit and injured another person who was then on the same premises. It was held that no presumption arose that at the time of the throwing of the stone the servant was acting in behalf of the company or within the scope of his employment as to anything then done or attempted to be done with a view to injure or affect the boy; and "consequently the company is not liable for the injury thus done to the third person." Assuming that the employé had authority to keep trespassers off the train, the implication is that, if he had been acting within the scope of his business at the time he threw at the boy, the company would have been liable to the third person. In Alabama Great Southern R. Co. v. Chapman, 80 Ala. 615, 2 South. 738, the plaintiff, while walking on the

track of the defendant's road, observed an approaching train, and got down on the edge of the embankment just before the train came along. A cow came up on the other side of the embankment, and was thrown from the track by the engineer, and bounced down, hit and injured the plaintiff. The plaintiff was not seen by the engineer, owing to the embankment. There was some evidence tending to show that the engineer was negligent. It was held that, if the animal was thrown from the track by the negligence of those in charge of the train, the injury to the plaintiff could not be regarded as a purely accidental occurrence, for which no action would lie, but must be deemed to have been proximately caused by the negligence. In Quill v. New York Central R. Co. (Sup.) 11 N. Y. Supp. 80, a person was standing on a highway at a railroad crossing when a passing train collided with a coal cart, which was thrown forward upon him, inflicting injuries which caused his death. It was claimed that the collision between the train and the coal cart was due to negligence on the part of its servant in not giving proper and timely warning of the approaching train. A recovery in favor of the administrator of the decedent was sustained. In Jackson v. Galveston Ry. Co., 90 Tex. 372, 38 S. W. 745, a declaration alleged that the plaintiff was repairing the track of the defendant railroad company; that the foreman sent an employé back to signal an approaching train; that the signal was given, but the train was not stopped, owing to the engineer's negligence or the insufficiency of the brakes; that, as the train approached, plaintiff stood aside to escape it; that as it neared plaintiff the fireman, to avoid danger which he properly apprehended, jumped from the engine against the plaintiff, and injured him. It was held that the negligence of the defendant was the proximate cause of the injury. The fact that the plaintiff was an employé appears, from the opinion, to have been stated in order to show that he was rightfully on the ground near the track. Denman, J., in speaking of the act of the fireman in leaping to escape danger caused by the negligence of the defendant or its engineer, said: "His acts, under the circumstances, are in law regarded as would be the movements of an inanimate object set in motion by such negligence." In Osborne v. Van Dyke, 113 Iowa, 557, 85 N. W. 784, 54 L. R. A. 367, an employé was holding a horse while the master applied some medicine to its neck. The horse jumped, and defendant began beating it with a heavy stick with a nail drawn through it, and, by reason of defendant's foot slipping, he unintentionally hit the plaintiff on the nose, causing injury. It was held that an instruction that the defendant would not be liable if in beating the horse he exercised reasonable care to avoid striking the plain

tiff, and the blow which inflicted the injury was caused by an accidental slip, was er roneous, since the slipping of defendant's foot, being the consequence of his own wrongful act, was not an excuse for the injury. In 1 Addison on Torts (Wood's Ed.) 4, it was said: "If the damage done is the immediate result of force exercised by the defendant in a place where the probable and natural result of misdirected force would be to cause injury to others, the defendant will be responsible for the damage done, though it happened accidentally, or by misfortune, unless the force was used strictly in selfdefense." In James v. Campbell, 5 Car. & P. 373, Mr. Justice Bosanquet instructed the jury that, if one of two persons fighting unintentionally struck a third, he was swerable in an action for assault, and the absence of intention could only be urged in mitigation of damages. In the celebrated case of Scott v. Shepherd, 2 W. Bl. 892, 1 Smith's Leading Cases (9th Ed.) 737, it was held that an action for damages would lie for originally throwing a squib which after having been thrown about in self-defense by other persons, at last put out the plaintiff's eye. There was some difference of opinion among the judges as to whether the proper form of action was in trespass or on the case.

an

Was the killing of Mrs. Wheeler the proximate result of the conduct of the company and its conductor? The definitions of proximate cause and proximate result in the textbooks and reports vary very much in expression, and sometimes in idea. Prof. Jaggard says that, in determining what is a proximate and what is a remote consequence, the English courts incline to accept the measure of damages in cases of contracts, and to hold such damages as (a) directly and necessarily result from the wrong complained of; (b) such further damages as should have been foreseen by the wrongdoer, in view of his knowledge, actual or constructive, of the special circumstances of the case. He asserts that the American courts do not seem to have determined very definitely whether the test is (a) what a reasonably prudent man should have foreseen under the circumstances, (b) what follows as a natural result in the ordinary course and constitution of nature. 1 Jaggard, Torts, 372. These two tests applied by the American courts may not be so far apart as they at first appear, since it would seem that what follows as a natural result in the ordinary course and constitution of nature ought to be foreseen by a reasonably prudent man. Section 3913 of the Civil Code of 1895, above quoted, in stating the rule, uses the expression, "damages which are the legal and natural result of the act done,” though contingent to some extent; but states that damages traceable to the act, but not its legal or "material" consequence, are too remote. The word "material" seems to be inapt, and, as in the first part of the section

the language is "legal and natural," it would appear to the writer that probably the word "material" originally found its way into the section by inadvertence or misprint, and that the same expression, "legal and natural," was intended to be used. This, however, is merely conjectural. In Atchison, T. & S. F. Ry. Co. v. Parry, 67 Kan. 515, 73 Pac. 105, it was held that "negligence, to be the proximate cause of an injury, must be such that a person of ordinary caution and prudence would have foreseen that some injury would likely result therefrom, not that the specific injury would result." This is quoted approvingly in Western & Atlantic R. Co. v. Bryant, 123 Ga. 77-83, 51 S. E. 20, 23. In Mayor & Council of Macon v. Dykes, 103 Ga. 847, 848, 31 S. E. 443, it was said that "the rule is that, in order to recover for an injury alleged to have resulted from the negligence of another, the injury must be the natural and probable consequence of the negligence; or, as otherwise stated, the wrong and resulting damage must be known, by common experience, to be naturally and usually in sequence. The damage, according to the usual course of events, must follow from the wrong. The principle in this state seems to be substantially the same." In 1 Shearman & Redfield on Negligence (5th Ed.) § 29,. it is said: "The practical solution of this question appears to us to be that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed (whether they could have been ascertained by reasonable diligence or not), would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind." In Insurance Co. v. Boon, 95 U. S. 117. 130, 24 L. Ed. 395, it is said: "The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster." See, also, Southern Ry. Co. v. Webb, 116 Ga. 152, 42 S. E. 395, 59 L. R. A. 109; Thompson on Negligence, § 59; St. Louis Ry. Co. v. McKinsey, 78 Tex. 298, 14 S. W. 645, 22 Am. St. Rep. 54.

3. It requires no argument to show that it was negligent to knowingly place a drunken conductor armed with a pistol and of bad habits in charge of a passenger car, traversing the streets of a city, or at least that it should be left to the jury to determine whether this was not negligent. As matter of law, on demurrer, we cannot say that this was not an act of negligence. It was contended that the homicide was not the natural and probable result of such act on the part of the company. But we know nothing more

apt to endanger life and safety than to place in control of a passenger street car the combination of a dangerous character, a conductor loaded with whisky, and a pistol loaded with powder and ball. In Christian v. Columbus & Rome Ry. Co., 79 Ga. 460, 7 S. E. 216, it was held that if a railroad company employed an agent and assigned him to duty with knowledge that he was insane, or of his being subject to sudden fits of insanity, it would not be excused from responsibility for a homicide committed by him while engaged in its business. See, also, Central Ry. Co. v. Hall, 124 Ga. 322, 52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. Rep. 170; Kerlin v. Chicago R. Co. (C. C.) 50 Fed. 185; Williams v. Missouri Pacific Ry. Co., 109 Mo. 475, 18 S. W. 1098. If the company negligently assigned the conductor to take charge of the car, and, while acting in the general scope of the business entrusted to him, he wrongfully shot at a passenger, and as a proximate consequence thereof a person passing on the highway was killed, the company would be liable.

It is urged that the decision in Belding v. Johnson, 86 Ga. 177, 12 S. E. 304, 11 L. R. A. 53, is controlling as to liability not resulting from the placing of the drunken conductor in charge of the car. In that case it was alleged that a saloon keeper sold and continued to furnish liquor to a person who was drunk, knowing that such person, when under the influence of liquor, was dangerous. The person so furnished shot and killed another while thus drunk. On demurrer it was held that the homicide was not the proximate result of the sale of the liquor. This differs materially from the present case. A mere sale of liquor to a drunken customer is not at all the same as knowingly to place a drunken employé, armed with a pistol, in charge of a car, with the duty of controlling it, dealing with passengers and conducting a part of its business. In Brazil v. Peterson, 44 Minn. 212, 46 N. W. 331, where a barkeeper assaulted a person who was in the saloon in an intoxicated and helpless condition, the court held that the proprietor of the saloon was liable.

What facts may be developed by the evidence we cannot, of course, foresee, but the court properly overruled the demurrer and retained the case for submission to the jury on the evidence.

Judgment affirmed. All the Justices con

cur.

ANDERSON v. HALL.

(Supreme Court of Georgia. June 14, 1907.) 1. INJUNCTION-VIOLATION-CONTEMPT.

Where the defendant in an injunction proceeding is informed by the attorney for the plaintiff that a temporary restraining order has been issued against him, and is also shown a copy of the order, which information clearly and plainly indicates what is the act from which

he must abstain. he is bound to obey the order of the court, whether he is served with the writ or not; and a refusal or failure to comply with the order, under such circumstances, is as much a contempt as if the defendant had been personally served by the sheriff with the writ. Murphey v. Harker, 41 S. E. 585, 115 Ga. 77. [Ed. Note. For cases in point, see Cent. Dig. vol. 27, Injunction, § 446.]

2. SAME-NOTICE OF INJUNCTION.

The evidence was sufficient to authorize the court below to find and hold that the defendant had been notified of the contents of the restraining order by the attorney for the plaintiff, and actually read a copy thereof which was exhibited to him by said attorney, and that, after being thus notified, the defendant violated the terms of the order; and the judgment holding the defendant in contempt for said violation should be allowed to stand.

(Syllabus by the Court.)

Error from Superior Court, Wilcox County; J. H. Martin, Judge.

Action by Emma Hall against G. H. Anderson. Judgment for plaintiff. Defendant brings error. Affirmed.

Haygood & Cutts, for plaintiff in error. C. C. Curry and D. B. Nicholson, for defendant in error.

CENTRAL OF GEORGIA RY. CO. v. FOREHAND.

(Supreme Court of Georgia. June 15, 1907.) 1. CARRIERS-CARRIAGE OF PASSENGERS-ACTIONS FOR INJURIES QUESTION FOR JURY.

Whether the act of a passenger on a railroad train in leaving his seat and going to the door or upon the platform of the coach, while the train is in motion, and before it comes to a full stop, is such negligence as would defeat a recovery for an injury resulting from the negligence of the company in operating its train, is a question for the jury to determine from all the facts and circumstances of the particular case under consideration; and, in the determination of this question, the jury are authorized to take into consideration the age and physical condition of the passenger, the speed of the train, the reason of the passenger for leaving his seat and going to the door or upon the platform, the purpose to be accomplished, and all other attendant facts and circumstances as disclosed by the evidence. Augusta Southern R. Co. v. Snider, 44 S. E. 1005, 118 Ga. 146, and cases cited: Cotchett v. Savannah Ry. Co., 11 S. E. 553, 84 Ga. 687. See, also, Parris v. A., K. & N. Ry. Co. (decided May 20, 1907) 57 S. E. 692.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1375-1378, 1383.] 2. DAMAGES-EXCESSIVE.

The petition set forth a cause of action, the evidence authorized the verdict, the amount found as damages was not excessive, and no sufficient reason appears for reversing the judg

ment.

(Syllabus by the Court.)

Error from Superior Court, Macon County; Z. A. Littlejohn, Judge.

Action by S. R. Forehand against the Central of Georgia Railway Company for per

ATKINSON, J. In addition to what is stated in the headnotes, we do not deem it necessary to make any statement with reference to the case, further than a brief reference to the amount of the verdict. There was testimony from which the jury could have found that the plaintiff was 38 years of age, of robust health, and of active business habits. For five years immediately preceding the injury he had earned an average of from $1,200 to $1,700 per annum. He was riding on the train of the defendant as a passenger, and was approaching the station to which he was destined. The station was a flag station, at which trains stopped for a very short time, and it was customary for passengers intending to leave the train at that station to leave their seats while the cars were still in motion and go to the platform, so as to alight immediately upon the stopping of the train. On this occasion the train was running 35 or 40 miles an hour, but, upon approaching the station, commenced to slack speed, as usually done preparatory to stopping, whereupon the defendant left his seat and proceeded to the platform in order to leave the train. Upon reaching the door, he perceived that the car was passing his station, and thereupon turned to call to the conductor or other servants operating the train, at which time the train, without stopping, gave a sudden jerk forward and threw him out of the door onto the platform, thence to the ground, dragging him a short distance, bruising his head and face, and finally running over his leg above the ankle. Amputations were necessary and were performed at two different times. The wound did not heal for eight months. He was unconscious for several days after the injury, and suffered great pain. He was unable to do any kind of work up to the time of the trial, and his earning capacity was permanently impaired. The jury returned a verdict in his favor for $15,000. The evidence being such as to authorize the jury in finding all of the foregoing to be true, we cannot say that the verdict for $15,000 in favor of the plaintiff was excessive.

Judgment affirmed. All the Justices con

cur.

VICKERS v. HAWKINS.

(Supreme Court of Georgia. Aug. 8, 1907.) 1. INFANTS-ACTIONS-WRIT OF ERROR-BILL OF EXCEPTIONS-SERVICE.

Where a minor sues by prochein ami, and prevails at the trial, the prochein ami is the proper person upon whom the bill of exceptions sued out by the defendant should be served.

4. SAME.

A tax fi. fa. in the following words: "Georgia. Worth County. To the Sheriff of Worth County, to Execute and Return, to Advertise and Sell According to Law: You are hereby commanded that on unreturned wild land number 211, in the 14th district of Worth county, you cause to be made the sum of $3.26, it being the amount of state and county taxes for the year 1888, and the further sum of 50 cents for the costs of this fi. fa. and make due return thereof to me according to law. Herein fail not. Given under my hand and seal, this 20th day of Dec., 1888. [Signed] W. J. Stoy, T. C." -recites the necessary jurisdictional facts required by the statute.

5. SAME.

Under the law in force in the year 1888, a tax execution against unreturned wild land was properly issued by the tax collector. 6. SAME.

The levy of an execution should be signed by the levying officer. If another sign the levying officer's name, the levying officer may adopt the signature as his own. Where the undisputed evidence is that the levying officer caused the property to be advertised for sale pursuant to the levy, personally cried it at the sale, executed a deed to the purchaser, and made an entry of the sale on the fi. fa., it is sufficient to authorize an inference that the levying officer adopted the signature as his own.

7. EVIDENCE-DOCUMENTARY EVIDENCE-PRE

LIMINARY PROOF-DETERMINATION.

The Civil Code of 1895, § 3628, relating to a filing of an affidavit of forgery to a deed, and having a special issue made up and tried as to the genuineness of a deed attacked for forgery, is inapplicable to a fi. fa. and entry of levy thereon offered in connection with a sheriff's deed, which is also attacked for forgery. 8. TRIAL-INSTRUCTIONS-PROVINCE OF Court AND JURY.

A request to charge that "the law presumes that an officer does his duty, and an entry made on an official document, purporting to be an entry by the officer whose duty it is to make it, is presumed to be the act of such officer, and such presumption is not overcome except by the strongest proof," was properly refused. The vice of the request is an intimation of opinion as to the quantum of proof necessary to overcome a rebuttable presumption.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 439–466.]

(Syllabus by the Court.)

Error from Superior Court, Worth County; W. N. Spence, Judge.

Action by Herbert Hawkins, by next friend, against E. L. Vickers. Judgment for plaintiff, and defendant brings error. Plaintiff sued out a cross-bill. Judgment on the main bill reversed and on the cross-bill affirmed.

Fulwood & Murray, J. J. Forehand, and Z. D. Harrison, for plaintiff in error. T. R.

Perry, J. H. Tipton, and Hall & Hall, for defendant in error.

Upon

EVANS, J. The action was complaint for land, and has been twice tried. On a review of the first trial the verdict was set aside and the case remanded to the superior court. See 111 Ga. 119, 36 S. E. 463. On the second trial the plaintiff introduced a grant from the state, and mesne conveyances from the state's grantee to herself. The defendant proffered in evidence a tax fi. fa. and the sheriff's deed to one Dixon (under whom he claimed title), whereupon the plaintiff filed an affidavit of forgery, averring that the sheriff's deed, the tax fi. fa., and the entry of levy on the fi. fa. were forgeries. the preliminary proof submitted by the defendant, the court allowed in evidence the sheriff's deed and the tax fi. fa. over the plaintiff's objection. The plaintiff excepted pendente lite to the admission of the deed and fi. fa. The court ruled that the filing of the affidavit of forgery devolved upon the defendant the burden of proving the genuineness of the tax fi. fa. and levy, and to show that any alteration appearing in the entry of levy was made prior to the sheriff's sale, and instructed the jury to this effect. No separate issue of forgery was made, but the issues of the genuineness of the tax fi. fa. and entry of levy were submitted along with the other issues in the case. The defendant also introduced a deed to himself from the purchaser at the tax sale, and proof that he had been in possession of the land since that time, and had made thereon permanent and substantial improvements. The jury returned a verdict for the plaintiff, the court refused a new trial, and the defendant excepted. The plaintiff sued out a cross-bill of exceptions, assigning error on her pendente lite exceptions.

1. On the call of the case in this court the defendant in error moved to dismiss the bill of exceptions because the only service thereof was an acknowledgment of service by the next friend, Herbert Hawkins; that he is only a formal party, and that A. H. Hawkins is the real party in the case, and service should have been made upon her. The purpose of having a guardian ad litem, or next friend, to represent a minor, is to furnish a person sui juris to carry on the litigation for the minor's benefit. Service of notice or other process pertaining to the case prosecuted by a prochein ami should be made upon him. He represents the minor in the particular litigation, and, if service cannot be had upon him, his connection with the case would be without practical value. We therefore hold that the next friend was the proper person upon whom to serve the bill of exceptions, and the motion to dismiss is denied. 2. As between the litigants according to the proof made at the trial, the ownership of the land in controversy depends upon the validity of the tax sale. We will therefore